don an easement will operate to extinguish

Geo. M. Smith for, applt. it, unless other persons have been led by Abner H. Prescott for respt. treat of the owner of the easement to

Held, The principle of law asserted in trial the servient estate as if free of the the charge, in this particular, is a sound servitude. 8 E. & B. 31.

and correct one; and, if it were not, no Corning v. Gould, 16 Wend., 531, and exception appears to have been taken to it Craine v. Fox, 161 Barb., 184, distin- by the defendant's counsel. The appeal guished.

is from the judgment, which only brings Plaintiff was not, as against defendant, up for review the exceptions taken at the entitled to a judgment without qualifica- trial. tion, and which might be held to destroy

Judgment affirmed. the easement. A judgment for the pos Opinion by E. Darwin Smith, J. session, subject to the easement, gave it all to whfch it was entitled.

Judgment of General Term, modify ESTOPPEL. CONSIGNMENTS. judgment at circuit by making plaintiff's N. Y. COURT OF APPEALS. title subject to the easement of defendant,

Brown resp’t v. Combes et al., applts. affirmed.

Decided Jan'y 18, 1876. Opinion by Allen, J.

One who advances money on growing

crops, and afterwards receives them,

under an agreement that he shall coniEJECTMENT. EXCEPTION.

sign them for sale, is entitled to the N. Y. SUPREME COURT-GENERAL TERM proceeds as against the consignees,

notwithstanding the FOURTH DEPT.


claimed under an older titie from Stewart, resp’t v. Patrick, applt.

the original vendor, of which he had

no notice. Decided January, 1876.

The consignees having received the A line between adjoining owners located crops from the consignnr, under a

and recognized as such for 20 years notice that they were to be sold for becomes a fixed boundary.

his account, are estopped from setJudge's charge must be excepted to in ting up that they were to be made order to bring same up for review.

upon any other account. Appeal from Judgment upon a verdict This action was brought to recover a at the Circuit in favor of the Plaintiff. balance due on account, for goods con

This is an action of ejectment brought signed to defendants for sale. It appeared to recover a small strip of land in the pos- that plaintiff agreed with one 0. to make session of the defendant, and involves the advances on his growing crops, which were question of a disputed boundary between to be shipped to him at S., and by him the parties in respect to two adjacent vil consigned to defendants and others, for lage lots in the village of Herkimer. sale. Plaintiff made the advances; 0. re

The case was put to the jury upon the ceived the crops and consigned them as question whether the line which the plain- agreed, with bills of lading in plaintift“s tiff claimed to be the true line had been own name, and letters were written by practically located and recognized as the him to defendants from time to time, line between the parties for 20 years and directing them to sell on his account. upwards, and they were instructed if that Defendants offered to prove upon the triat were so “it put an end to the case, and an agreement between 0. and them of the the plaintiff was entitled to recover accord-previous year, by which they were to ading to his occupation for 20 years." vance money for the crops, and which

was to continue in force until a final set Judgment of General Term affirming tlement was had, and all allowances paid, judgment entered on verdict directed for and that they had made advances there- plaintiff, affirmed. under. Plaintiff did not know of this

Opinion by Miller, J. agreement. Simeon E. Church, for applts.

EVIDENCE. VOLUNTARY STATEW. W. Goodrich, for respt.

MENT. Held, That plaintiff by his advance became possessed of the crops, and was en N. Y. COURT OF APPEALS. titled to the proceeds of the sale of them;

Murphy, plaintiff in error v. The Peothat the prior agreement with defendants ple, defendants in error. did not alter plaintiff's rights, as he had

Decided January 18, 1876. no notice of it, and had full possession of the crops; that defendants could not Upon the trial of an indictment for claim the crop under an older title, as they murder, it is competent for the prosewere not sold or delivered to defendants,

cution to show, as bearing upon the but shipped on behalf of plaintiff, with a

question of motive, that deceased had

attended Court several times with a notice to that effect.

party against whom the prisoner was Defendants claimed that notice of their

prosecuting several suits, and the obclaim was given in a letter to plaintiff in jection that parol, evidence of the answer to a letter from him complaining nature of the suits coul i not be given of delay, which stated that plaintiff could

is not available on appeal. change his consignments if he would pay A statement made by the prisoner, the amount defendants had advanced to shortly after the murder, and while 0. To this plaintiff replied, that as he he was in custody of the Sheriff, in had made the shipments in his own name, response to the question, do you dehe supposed defendants could have no

sire to make any statement," is vol

untary. doubt who was entitled to the returns, and that he sent other articles for defend

The plaintiff in error was convicted of ants to sell on his account. Defendants the murder of one H., by the firing of a continued to sell the crops on plaintiff's gun or pistol. The evidence was entirely account, which were forwarded with bills circumstantial, and tended to show that of lading in plaintiff's name.

the shot was fired by some one standing

outside of the house in which the deceased Held, That plaintiff’s reply to defend- and one G., the prisoners brother-in-law, ants' letter was a direct notification to them that the sales were made for plain- which they were sitting. Upon the trial

resided, and near a window of a room in tiff, and they are estopped now from claim- G. was produced as a witness for the peoing that they were made upon any other

ple, and testified, among other things, account.

that he was the defendant in three suits Held, also, That as the case appears to commenced by the prisoner against him have been tried upon the theory that the and others, and had been several times to balance claimed by plaintiff was actually attend the trial of them, and that H., the due unless defendants were entitled to de- deceased, had accompanied him, and that duct their advances to 0. of the previous the suits were brought to set aside deeds year, although no proof was given that from his wife to him. It appeared that there was anything due plaintiff, defend the witness' wife was dead, and that the ants are concluded from raising the ques- suits were to be tried on the Monday after tion here.

the murder. This evidence was objected

to generally by the prisoner's counsel, and conversation between the officer and the the objection was overruled.

prisoner, when he made his statement, the James Emott and H. Daily, Jr., for prisoner was asked “where did that mask plaintiff in error.

come from,” and replied, “the children Seth B. Cole for defendants in error.

got that from the ragamuffins," and im

mediately added, as if recollecting himself, Held, no error; that the evidence was “ that mask had a black nose and was competent as bearing upon the question torn down the face.” The prisoner's counof motive; that it was always competent sel moved to have this testimony stricken upon such a trial to show the relations out, “as not having been connected with between the prisoner and the persons the prisoner," and the motion was denied. against whom the murderous act was di- The fact that a mask had been found had rected; that the objection having been not been communicated to the prisoner made generally, the objection that parol when the conversation occurred. evidence could not be given of the suits, and that the pleadings should have been

Held, no error; that the reply of the produced, is not available on appeal; that prisoner indicated that he knew that a the objection should have been specifically mask was in some way connected with the made upon the trial. 17 Wend, 257; 3 transaction, and that it was proper to N. Y., 243; 12 id., 442; 32 id. 440; 45 id., show the conversation as tending to con

nect the prisoner with the mask found on 753; 50 id. 392.

the night of the murder. The prosecution proved that the prisoner, when brought to the Sheriffs office, judgment of conviction, affirmed.

Judgment of General Term, affirming on the day after the murder, was asked if he desired to make any statement of his

Opinion by Andrews, J. “whereabouts on Sunday and Saturday," and upon being informed that if he desired to do so the statement would be re

FAILURE OF CONSIDERATION. duced to writing for him, and the pris

SALE OF NEGOTIABLE BONDS. oner replied that he did, and then proceeded, without any further request, to

U. S. SUPREME COURT. make a statement. This statement was offered in evidence and received under ob

Otis, et al., plaintiffs in error, v. Cullum, jection by the prisoner that it was not receiver, &c., defendant in error. voluntary.

Decided October Term, 1875. Held, no error; that the statement was In the absence of fraud or warranty, not to be so considered simply because the vendor of negotiable town bonds, made after the prisoners' arrest to the offi which, after the sale, are declared cer who had arrested him, and while in his

void by the courts, is not bound to actual custody. 15 N. Y., 9; 37 id., 303 :

repay to the vendee the purchase 10 id. 13; 15id., 384; 41 id., 9. It was

price. for the jury to determine the weight to be given to the statement, taking into con

In error to the Circuit Court of the sideration the circumstances under which United States for the District of Kansas. it was made. Evidence was received The Legislature of Kansas passed two under objection which showed that after acts under which the City of Topeka was the murder, and on the same evening, a authorized to issue bonds for certain spemark was found under the window where cified purposes, the amount in each case to the shot was fired, and that during the be within the limit prescribed. A hundred

coupon bonds of one thousand dollars each, FRAUDULENT PURCHASER. payable to a party named or bearer, were EQUITABLE RELIEF. executed and delivered to that party. They UNITED STATES SUPREME COURT. became the property of the First National

Neblett v. Macfarland. Bank of Topeka. That bank put them upon

Decided October Term, 1875. the market and disposed of them. Eighteen of them were sold to the plaintiffs in error In setting aside a conveyance procured for the sum of $12,852, and the residue to

by fraud, equity will allow the pur

chaser to receive back only the idenanother party. There was default in the

tical property by which he effected payment of interest.

The other party the bargain, whether it has greatly brought suit. This court held that the

depreciated in value or not; and Legislature had no power to pass the acts, even if it has become worthless. and that the bonds were, therefore, void.

This action was brought to set aside (Loan Association v. Topeka, 20 Wall. 655.) the conveyance of a plantation in LouisiThis suit was brought by the plaintiffs in ana, made by Macfarland to the appellant error to recover from the receiver the Neblett, upon the allegation that the conamount paid to the bank for the eighteen veyance was obtained by the fraudulent bonds, with interest upon that sum. The acts and representations of Neblett and ground relied upon is failure of considera- his father. tion. The good faith of the bank was con The only consideration given, or proceded, as also that there was no warranty. fessed to be given, by Neblett for the con

Held, The plaintiffs in error got ex- veyance was the cancellation of a certain actly what they intended to buy, and did bond for the sum of $14,464.51, executed buy. They took no guaranty. They are by Macfarland to Sterling Neblett, the seeking to recover, as it were, upon one, father, and alleged to be the property of while none exists. They are not clothed Henry Neblett. with the rights which such a stipulation The Court below adjudged the transacwould have given them. Not having taken tion to be fraudulent, directed the execuit, they cannot have the benefit of it. The tion of a deed reconveying the property, bank cannot be charged with a liability and ordered the return and re-delivery of which it did not assume.

the bond for $14,464.51, unaffected by Such securities throng the channels of any endorsement of credit or payment commerce, which they are made to seek, thereon, and the same, with the mortgage

made for its security, to retain the same and where they find their market. They

lien thereon and the same force and effect pass from hand to hand like bank notes The seller is liable ex delicto for bad faith,

as if the deed had not been made or any and ex contractu there is an implied war

cancellation of the bond taken place. ranty on his part that they belong to him,

It was claimed that, instead of direct. and that they are not forgeries.

ing a return of the bond in specie, as a

condition for the return of the land, the It would be unreasonably harsh to hold court should have directed the payment all those through whose hands such instru. of the amount of the money secured ments may have passed liable according to thereby. the principles which the plaintiffs in error Held, 1. In cases of this character the insist shall be applied in this case. (Lam. general principle is that he who seeks bert v. Heath, 15 Meeson & W. 486.) equity must do equity; that the party

against whom relief is sought shall be reJudgment affirmed.

mitted to the position he occupied before Opinion by Swayne, J.

the transaction complained of. The court

same now.

proceeds on the principle that as the tran- supra, it is said: “The party defendant
saction ought never to have taken place, is not bound to rescind until the lapse of a
the parties are to be placed as far as pos- reasonable time after discovering the
sible in the situation in which they would fraud. Hence the parties cannot be placed
have stood if there had never been any in statu quo as to time.”
such transaction.

Judgment affirmed.
But this principle will not benefit the Opinion by Hunt, J.
complaining party in this suit.
He is restored here to his property that

he had and parted with when he received
his deed, to wit, his bond and mortgage. If

CONN. SUPREME COURT OF ERRORS. he had paid $14,500 in money and received Continental Life Insurance Co. v. Benin return only a bond for the like amount, jamin H. Palmer and others. of doubtful security and impaired by the Decided February 1875. lapse of time, he might well have com- A wife insured the life of her husband, plained. But he paid no money.

the amount payable to herself if livWhether good or bad, he receives now ing, if not, to their children. She the same security that he gave to his died before her husband, and one of vendor. It would be a perversion of jus the children before him, leaving a tice to give him the full amount in money

child. for a security then worth but fifty cents Held, that a transmissible interest on the dollar. If, on the other hand, it

vested in the children upon the 188Uwas then an adequate security, it is the

ing of the policy, and that the child of the deceased child took by descent

the interest of its parent, and was en2. It is no objection to a restoration of

titled to the portion of the fund property received on a fraudulent sale

which the parent would have received that it has fallen in value since the date if living. of the transaction.-(Blake v. Morrell, 21 Plaintiffs brought bill of interpleader Beavan, 613; Veazie v. Williams, 8 How., against certain parties claiming interest 134, 158.) Nor if the property is of a adversely to each other, in the amount of perishable nature, is the holder bound to a life insurance policy payable by petitionkeep it in a state of preservation until the ers. It was found upon the petition and bill is filed.—(Scott v. Perrin, 4 Bibb, 360; answer that Betsy A. Palmer insured the Kerr, 337).

life of her husband, Benjamin W. Palmer, A party seeking to set aside a sale of in the sum of $3,000, payable to herself, if shares is not bound to pay calls on them living, if not, to their children. She died to prevent forfeiture after filing his bill.-before her husband.

before her husband. Amos F. Palmer, (Same auth.) Nor is it fatal to his right one of the children, also died during the of rescission that some of the shares have life of his father, leaving issue, Charles been thus forfeited.

P. Palmer, one of the respondents. We have no means of knowing whether That on death of Benjamin W. Palmer there can be a defence made to the bond, there was due and payable on policy the arising from the statute of limitations. But sum of $2,826.79 cents, which petitioners of this the appellant must take his chance. were ready and willing to pay to the perIf the bond has become thus impaired it sons entitled to receive same. is no worse than the loss of a perishable The question here being whether Chas. article, or a forfeiture of shares during the P. Palmer takes an interest in the policy, litigation. These circumstances do not or whether the whole sum insured vests in alter the rule of law. In Gatley v. Newell,'the surviving children.

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